GOP-dominated Labor Board majority uses ‘joint employer’ rule to restrict picketing

The Trump-named Republican majority of the National Labor Relations Board has apparently used its rewritten “joint employer” rule to restrict union picketing, an analyst and attorney for the non-partisan Century Foundation says.

If their decision stands, the “result would be far-reaching restrictions on picketing that limit the ability of unions to put public pressure on management,” notes Foundation fellow Moshe Marvit.

The union hurt in the 4-year-old picketing case, Service Employees Local 87 of San Francisco, isn’t taking it lying down. The NLRB panel that ruled for the two joint employers and against the workers, the union and the community organization that aided them had only the board’s three GOP members.

So SEIU General Counsel Nicole Berner and Local 87’s lawyers appealed the panel’s August 28 decision to the full board in late October.

The board’s administrative law judge ruled in 2015 that Rafael Ortiz, owner of OJS, one of the two joint employers of janitors at 55 Hawthorne Street in downtown San Francisco, illegally fired four janitors for participating in informational picketing there.

The picket signs said “this is not a strike” but asked prime tenants of the building, including KGO Radio, to intervene and demand building owners deal with sexual harassment by Ortiz. Preferred Building Services manages 55 Hawthorne for its owners, but contracted the janitorial services to Ortiz’s company. The two were joint employers of the janitors.

After a second round of picketing – and after Ortiz used pretexts to fire the four janitors – Preferred “terminated its contract” with OJS and all the janitors were let go. Local 87, the janitors and a pro-Latino community group all complained to the board’s regional office.

NLRB’s administrative law judge ruled for the workers, but the board’s panel voted 3-0 to reverse the ruling, using its joint employer doctrine to justify the decision – let Ortiz get off scot-free from punishment.

But the board panel used another rationale to rule against the workers, SEIU’s brief says: The panel charged the union with Illegal secondary picketing at other buildings the same company manages in San Francisco. That’s what’s dangerous, said in arguing for a rehearing.

“Reconsideration of the board’s decision is justified because the board (panel) made a ‘material error’ by construing and applying” labor law’s secondary picketing ban “in a manner that violates the 1st Amendment or at least raises serious 1st Amendment concerns” about restricting workers’ free speech, SEIU’s lawyers wrote.

“In this case, the board” panel “made a number of material legal errors in concluding the 1st Amendment-protected activities of the employees and of Local 87,” including the informational picketing, passing out handbills and meeting with the building’s property manager about the sexual harassment, took their actions outside the protections of” labor law, the constitutional amendment “and Title VII of the Civil Rights Act, and instead made them unlawful.”

Title VII bars employers from discriminating by race, sex, sexual orientation, religion and other factors. 

Marvit said the case goes far beyond the four janitors who got fired, or the 22 let go when the building ended its contract with the firm that in turn hired Ortiz’s company to do the janitorial work.

“The NLRB overturned an administrative law judge’s ruling that because the second company had significant control over the employment relationship, it constituted a joint employer,” he explained.

“The judge based her conclusion on evidence that Preferred Building Services was involved in the hiring, firing, disciplining, supervision, direction of work, and other terms and conditions of the janitors’ employment with Ortiz Janitorial Services. Therefore, both Ortiz and Preferred acted as joint employers to the janitors.”  

Instead, the NLRB panel called the picket line illegal secondary picketing.

“This matters because if the various companies were joint employers, there were no prohibited secondary activities. But the NLRB held the janitors worked for the subcontractor, and any actions aimed at any other company was illegal under the law.” That includes picket signs directed at building tenants and at the other joint employer.

“What is remarkable about this case is how it makes things much worse for workers by only subtly reinterpreting the law. It takes a narrow read on the joint employment doctrine and thereby limits workers’ right to picket,” Marvit said.

"As a result, many workers in what former U.S. Department of Labor Wage and Hour Administrator David Weil has termed ‘the fissured workplace’ will find it difficult to vindicate their rights. Ultimately, this case shows how many basic fundamental rights associated with the 1st Amendment workers are prohibited from engaging in.”

The full NLRB has yet to rule on SEIU’s request for the “extraordinary hearing.”